Capacity and
Self-Determination (Supervision of Delegates etc.) (Jersey)
Regulations 2018
1 Interpretation
In these Regulations –
(a) the “Law”
means the Capacity and Self-Determination (Jersey)
Law 2016;
(b) “attorney”
means a person on whom authority is conferred by a lasting power of attorney
under Part 2 of the Law; and
(c) a reference (without
further specification) to “P” is a reference to the person who is
the person so designated under Part 2 or, as the case may be, Part 4
of the Law.
2 Designated
person or office
(1) The Viscount is
designated as having responsibility for the matters set out in Article 36(1)(a)
to (c) of the Law and shall exercise such responsibility in accordance with the
further provision made by these Regulations.
(2) For the purpose of
exercising such responsibility the Viscount may enter into all such
arrangements, including by or with any other person, as the Viscount may
consider necessary or expedient.
3 Powers
of investigation where representations etc. received
(1) This Regulation applies
where –
(a) the
Viscount has received representations (including, but not limited to,
complaints) about the exercise of powers, or a failure to exercise powers, by
an attorney or a delegate; or
(b) it
otherwise appears to the Viscount that there are circumstances, such as
described in paragraph (2), justifying investigation.
(2) The circumstances
mentioned in paragraph (1)(b) are such circumstances as –
(a) give
the Viscount sufficient cause to believe that the attorney or delegate has
behaved, is behaving or proposes to behave –
(i) in contravention
of the terms, or outside the scope, of his or her appointment, or
(ii) otherwise
not in P’s best interests;
(b) give
rise to concerns on the part of the Viscount about the conduct of the attorney
or delegate (including, but not limited to, the level of fees charged or
proposed to be charged by a delegate);
(c) suggest
that an attorney or a delegate has failed to comply with an order made or
directions given by the Court; or
(d) otherwise
constitute good reason, in the view of the Viscount, to seek further
information about an attorney’s or delegate’s discharge of his or
her functions.
(3) Where this Regulation
applies, the Viscount may –
(a) by
notice in writing given to the attorney or delegate, require the attorney or
delegate to provide –
(i) such information
(including accounts) or documents as may be specified, or as are of such
description as may be specified, and
(ii) such
reports as the Viscount may require, from the attorney or delegate, as to the
exercise of his or her functions,
and in either case, to do so in such a manner and before the end of
such reasonable period and at such place as may be specified; and
(b) require
that an act or decision, or a proposed act or decision, by an attorney or a
delegate be suspended or postponed until such time as, for the purpose of concluding
the investigation, the Viscount may reasonably require.
(4) Where any information
or document is provided to the Viscount under paragraph (3)(a)(i), the
Viscount may further require such information to be verified, or such document
to be authenticated, in such reasonable manner as the Viscount may see fit.
(5) Nothing in these
Regulations shall require the Viscount to investigate, consider or determine
any complaint if, in the Viscount’s opinion –
(a) the
subject matter of the complaint is trivial; or
(b) the
complaint is frivolous or vexatious or is not made in good faith.
4 Application
for additional time to submit a report
(1) A person required under
Regulation 3(3)(a)(ii) to submit a report may make an application to the
Viscount to request more time for doing so.
(2) An application under
paragraph (1) must –
(a) state
the grounds for requesting more time; and
(b) contain,
or be accompanied by, such information as the Viscount may reasonably require
to determine the application.
(3) The Viscount may, in
response to an application under paragraph (1), grant such extension of
time as the Viscount may consider reasonable.
5 Powers
of investigation: general
(1) For the purpose of
further enabling the Viscount to exercise responsibility under the Law or
functions under these Regulations, the Viscount may exercise the powers
conferred by paragraphs (2), (3), and (5) to (7).
(2) The Viscount may, at
all reasonable times, examine and take copies of any record kept in relation to
P –
(a) by
the Minister or by the Health and Social Services Department, and relevant to a
decision made or proposed to be made on behalf of P;
(b) by –
(i) a person
registered under the Health Care (Registration) (Jersey) Law 1995 or the Nursing and Residential Homes (Jersey)
Law 1994, or
(ii) any
person, other than such a person as mentioned in sub-paragraph (b)(i),
providing domiciliary care to P; and
(c) by
persons or bodies carrying on the business of providing financial services
within the meaning given to that expression by Article 1(1) of the Financial Services Commission (Jersey) Law 1998; or
(d) by
the Judicial Greffe.
(3) The Viscount, or a
person authorized by the Viscount to do so, may interview an attorney, a
delegate, P, or such other person and by such means (subject to and in
accordance with paragraphs (4) to (6)), including by visiting the person,
as the Viscount may reasonably consider necessary.
(4) Where it is proposed to
exercise the power conferred by paragraph (3) by visiting a person, the
Viscount or the authorized person must notify, or make arrangements to notify,
the person to be interviewed of –
(a) the
proposed date, time and place of the visit;
(b) to
the extent that it is practicable to do so, any specific matters which are the
subject of the interview; and
(c) any
proposal to inform any person, other than a person mentioned in paragraph (3),
of the interview.
(5) The Viscount, or a
person authorized by the Viscount to do so, may with P’s consent
interview P privately without the attendance of P’s attorney or delegate.
(6) The Viscount, or a
person authorized by the Viscount to do so, may request an attorney or a
delegate to attend for interview at the Viscount’s offices at a specified
date and time.
(7) For the purposes of
investigation into a complaint received by the Viscount, the Viscount may
consult such persons, being persons having expertise in the matter in respect
of which the complaint is made, as the Viscount may see fit.
6 Power
to request final reports concerning delegates
(1) This Regulation applies
in any case where –
(a) P, being
a person in relation to whom a delegate was appointed under Part 4 of the
Law, has died;
(b) a
delegate has become incapable of carrying out his or her function as such, or
has died;
(c) the
Court has made an order discharging a delegate; or
(d) a
delegate otherwise ceases to be under a duty to discharge his or her function
as such.
(2) Where the case in which
this Regulation applies is that described –
(a) in
paragraph (1)(a), the delegate must notify the Viscount of P’s
death;
(b) in
paragraph (1)(c), the Judicial Greffe must notify the Viscount of the
order of the Court;
(c) in
paragraph (1)(d), the delegate must notify the Viscount of the discharge.
(3) The Viscount may
require an attorney or delegate (or, in the case where the delegate has died,
his or her personal representatives or such other persons as the Viscount
considers appropriate) to submit –
(a) at
such place;
(b) by
the end of such reasonable period; and
(c) in
such form and manner,
as may be specified by notice in writing given to the delegate, a
final report on the exercise of the delegate’s function.
(4) The Viscount must
consider a final report submitted under paragraph (3), together with any
other information the Viscount may have in relation to the discharge of
functions by the delegate, and may, for the purpose of such consideration,
request such additional information or documents from the delegate as the
Viscount may consider necessary.
(5) Where the Viscount is
dissatisfied with any aspect of a final report, the Viscount may apply to the
Court for an appropriate remedy (including the enforcement of any security
given by a delegate).
7 Power
to draw complaints to the attention of the Court
(1) Where,
following –
(a) an
investigation under Regulation 3; or
(b) the
Viscount’s consideration of a final report under Regulation 6,
the Viscount considers it necessary or appropriate to do so, the
Viscount may make, or may request the Attorney General to make, an application
to the Court requesting the exercise, in relation to an attorney or a delegate,
of any of the Court’s powers under the Law.
(2) In considering whether
it is necessary or appropriate to exercise the power conferred by paragraph (1),
the Viscount –
(a) must
consider P’s best interests; and
(b) may
consider such other matters as the Viscount considers relevant, including (but
not limited to) compliance by the attorney or delegate with any requirements
of –
(i) the Law, and of
any other applicable enactments or rules made under the Law,
(ii) the
code of practice issued by the Minister under Article 68 of the Law,
(iii) guidance
issued by the Viscount under Regulation 12(1)(c),
(iv) the
terms of the lasting power of attorney (in the case of an attorney) or of
appointment (in the case of a delegate), and
(v) orders or directions
given by the Court.
8 Power
to share information
Where the Viscount considers it necessary or expedient to do so, the
Viscount may disclose, to the Court, the Minister or such other persons as the
Viscount thinks fit, any information –
(a) obtained by the
Viscount in the exercise of a function under the Law or these Regulations; and
(b) relating to P, to
P’s assets, or to an attorney or a delegate.
9 Functions
in relation to persons carrying out specific transactions
(1) This Regulation applies
where, by an order made under Article 24(5) of the Law, the Court has
authorized a person (“T”) to carry out any transaction for or on
behalf of P.
(2) Where this Regulation
applies, the Viscount has the functions of –
(a) receiving
any reports from T which the Court may require; and
(b) dealing
with representations (including complaints) about –
(i) the way in which
the transaction has been or is being carried out, or
(ii) any
failure to carry out the transaction.
(3) The provisions of
Regulations 3 to 6 shall have effect in relation to T as though T were an
attorney or a delegate.
10 Powers
and functions exercisable on death of P
The powers and functions conferred by Regulations 3 to 9 shall
remain exercisable by the Viscount notwithstanding the fact that P has died.
11 Right
to require reconsideration of Viscount's decisions
(1) An attorney or a
delegate may require the Viscount to reconsider any decision made by the
Viscount under Regulations 3 to 8 in relation to that attorney or
delegate.
(2) The right conferred by
paragraph (1) is exercisable by the attorney or delegate giving notice in
writing to the Viscount within the period of 21 days beginning with the
date on which notice of the decision was given to the attorney or delegate.
(3) Notice given in
accordance with paragraph (2) must –
(a) state
the grounds for the request for reconsideration; and
(b) contain,
or be accompanied by, any relevant information or documents.
(4) At any time after
receiving the notice and before reconsidering the decision to which it relates,
the Viscount may require the attorney or delegate to provide such further
information, or to produce such documents, as the Viscount reasonably considers
necessary to enable reconsideration of the decision.
(5) Following
reconsideration, the Viscount must give to the attorney or
delegate –
(a) notice
in writing of the decision on reconsideration; and
(b) if
the previous decision is upheld, a statement in writing of the reasons for
upholding it.
12 General
regulatory functions of Viscount
(1) For the purposes of exercising
responsibility for the matters in relation to which the Viscount is designated
by Regulation 2, the Viscount may –
(a) review
the activities of delegates (whether individually or by
reference to selected classes of delegates), and for this purpose and from time to time request reports in writing from delegates as to such matters as the Viscount may reasonably consider
necessary and appropriate;
(b) submit,
and where appropriate publish, such reports on the activities of attorneys and delegates, to the Minister, the Court and to such other persons as the
Viscount may reasonably consider necessary and appropriate; and
(c) following
any such review as mentioned in sub-paragraph (a) –
(i) issue such
guidance to delegates (in
addition and without prejudice to any code of practice issued by the Minister
under Article 68 of the Law), and
(ii) for
this purpose consult such persons,
as the Viscount may consider necessary and appropriate.
(2) In the exercise of any
function under paragraph (1), the Viscount may, by notice in writing given
to any person, require the person –
(a) to
provide such information (including accounts) or documents as may be specified,
or as are of such description as may be specified; and
(b) to do
so in such a manner and before the end of such reasonable period and at such
place as may be specified.
13 Security
to be given by delegates
(1) Where, in the exercise
of its powers under Article 34(8)(a) of the Law, the Court orders a
delegate to give to the Judicial Greffier, or to such other person as the Court
may direct, security for the delegate’s discharge of his or her
functions, that security must be given –
(a) by
means of a bond for such amount as the Court may think fit; or
(b) by
such other means as the Court may direct.
(2) For the purposes of
paragraph (1), the Court may require the delegate to provide to the Court
such endorsements, guarantees or undertakings, in such form or manner, as to
the provision of security as the Court may specify.
(3) Where –
(a) security
is given to the Court in accordance with this Regulation; and
(b) any
premium is payable in respect of that security,
the delegate must provide, on such dates or at such intervals as the
Court may determine, such information or evidence as the Court may specify as
to payment of the premium.
(4) Where the Court orders
the enforcement of any security given in accordance with this Regulation, the
Court must notify the Viscount of the arrangements made in respect of that
security under this Regulation, and direct that the Viscount shall be
responsible for enforcement of that security.
14 Court's
determination as to supervision of delegate
Where, under Article 24(2)(b), (4) or (5) of the Law, the Court
exercises its power to appoint a delegate or to vary the powers conferred on a
delegate, the Court shall consider whether or not the delegate will require to
be supervised by the Viscount in the performance of his or her functions as
delegate, and –
(a) for the purposes of
such consideration, the Court may request such information or reports from such
persons as the Court may reasonably consider necessary; and
(b) if the Court determines
that the delegate should be so supervised, the Court shall further determine
the level of supervision required, and shall order accordingly.
15 Fees
for supervision of delegate
(1) Where, under
Regulation 14, the Court makes an order for the supervision of a delegate,
the Viscount shall –
(a) agree
a supervision plan with the delegate; and
(b) require
the delegate to pay to the Viscount such an amount by way of a fee in relation
to the supervision (a “supervision fee”) as may, by reference to
the prescribed scale of fees, be appropriate.
(2) The supervision fee
shall be payable within 30 days of the date of the requirement made under paragraph (1)(b)
and thereafter annually throughout the duration of the plan and, subject to paragraphs (3)
to (5) –
(a) shall
be payable –
(i) throughout the
duration of the plan, within 30 days of the date on which a requirement
for payment of the fee is made, or
(ii) upon
termination of the plan, within 30 days of that termination; and
(b) be
paid by the delegate out of P’s assets.
(3) Where the period in
respect of which a supervision fee is payable is less than one year, the amount
of the fee shall be in the same proportion to the full fee prescribed for a
year as the proportion that period bears to one year.
(4) No amount of any
supervision fee shall be payable where, at the date when the fee would
otherwise be payable under paragraph (2)(a) –
(a) P is
in receipt of a qualifying benefit; or
(b) in an
case where P is not in receipt of such a benefit, P’s assets are
insufficient to pay the amount.
(5) Without prejudice to paragraph (3),
in any case other than one described in that paragraph where the Viscount
considers that the imposition of a supervision fee would, in the circumstances
of the particular case, cause undue hardship, the Viscount may determine that
the fee is to be reduced (or, where the fee has already been paid, remitted) by
such amount as the Viscount sees fit, including by the full amount of the fee.
(6) An application for the
remission of the whole or part of a supervision fee under paragraph (5)
shall be made to the Viscount within the period of 6 months beginning with
the date on which the request for payment of the fee is made under paragraph (1)(b).
(7) For the purpose of paragraph (4)(a),
P is in receipt of a “qualifying benefit” if –
(a) P is
a member of a household in receipt of income support under the Income Support (Jersey) Law 2007;
(b) P
meets the requirements for a special payment to defray the expenses of
long-term care being provided to P, under Regulation 2 of the Income Support (Special Payments) (Long-Term
Care) (Jersey) Regulations 2014;
(c) P
receives a grant under Article 11, or a loan under Article 12, of the
Long-Term Care (Benefits)
(Jersey) Order 2014 for the purpose of meeting the weekly costs mentioned in Article 9(c)
of that Order; or
(d) P is
a person admitted to the health bonus scheme pursuant to a determination under Article 5
of the Social Security (Health Bonus
Scheme) (Jersey) Order 2016.
16 Viscount
acting as delegate: application of Regulations, etc.
(1) Regulations 3, 4,
6, and 10 to 12 shall not apply to the Viscount acting in the capacity of a
delegate under Part 4 of the Law.
(2) A code of practice
issued under Article 68 of the Law shall apply to the Viscount acting as
mentioned in paragraph (1) –
(a) to
the extent that the code is relevant to the circumstances of the particular
appointment of the Viscount as delegate; and
(b) taking
into account the needs, and assets, of P in the particular case in question.
(3) Nothing in these
Regulations shall be taken to restrict the right of any person, on behalf of P,
to make a complaint to the Viscount or to the Court in respect of any default
or neglect in the performance by the Viscount of the Viscount’s function
as a delegate.
17 Limitation
of liability of Viscount
(1) The Viscount, or any
member of the Viscount’s Department, shall not be liable in damages for
anything done or omitted in the discharge of or purported discharge of any
function under the Law, these Regulations or any other enactment made under the
Law.
(2) Paragraph (1) does
not apply –
(a) if it
is shown that the act was done, or the omission made, in bad faith; or
(b) so as
to prevent an award of damages made in respect of an act on the ground that the
act was unlawful as a result of Article 7(1) of the Human Rights (Jersey) Law 2000.
18 Orders
as to professional fees of delegates
(1) The Minister may by
Order make provision as to professional fees to be charged by delegates in
respect of their functions, including in particular (but not limited to)
provision as to the matters listed in paragraph (2).
(2) The matters mentioned
in paragraph (1) are –
(a) the
amount of fees, whether by reference to a prescribed scale of fees or by
reference to a percentage of P’s assets, or otherwise;
(b) the
services in respect of which fees are chargeable;
(c) requirements
to provide estimates of fees to the Court, including the matters or services as
to which such estimates must be provided;
(d) requirements
for agreement by the Court of such estimates and powers of the Court to confirm
such estimates;
(e) powers
of the Court to impose terms and conditions, in relation to particular
estimates of fees or to such estimates generally;
(f) powers
of the Viscount to refer any matter or question arising as to such fees or estimates
to the Court for the Court’s determination;
(g) powers
of the Court and of the Viscount to seek further information as to fees or
estimates from the delegate or from any other person concerned;
(h) powers
of the Court and of the Viscount exercisable in cases where an estimate of fees
is exceeded; and
(i) cases
in which exemptions from, or reductions or remissions of fees may be granted.
19 Offence
of providing false or misleading information
Where, in response to a request made under the Law or these
Regulations for provision of any information, document or report, an attorney
or delegate knowingly or recklessly provides information or a document or
report which is, in a material particular, false or misleading, the attorney or
delegate is guilty of an offence and liable to a
fine of level 3 on the standard scale.
20 Offence
of obstruction
An attorney or delegate who, without reasonable cause or excuse,
refuses –
(a) to allow the
interviewing (including visiting) of P by the Viscount or any other person
authorized by the Viscount under Regulation 5; or
(b) to provide any
information, document or report to the Viscount or other person authorized by
the Viscount under that Regulation,
or who otherwise obstructs any such person in the exercise of his or
her functions under these Regulations, is guilty of an offence and liable to a
fine of level 3 on the standard scale.
21 Offence
of disclosing confidential personal information
(1) An attorney or delegate
who knowingly or recklessly discloses confidential information relating to P,
other than in the exercise of his or her authority as attorney or delegate in
accordance with the Law or these Regulations, is guilty of an offence and
liable to a fine of level 3 on the standard scale.
(2) For the purposes of paragraph (1)
“confidential information” is any information relating to P which
has been obtained by the attorney or delegate in the course of the exercise of
his or her authority as such.
(3) It is a defence for a
person charged with an offence under paragraph (1) to prove that, at the
time of the alleged offence –
(a) any
of the circumstances in paragraph (4) applied in relation to the
disclosure; or
(b) the
person reasonably believed that any of those circumstances so applied.
(4) The circumstances
mentioned in paragraph (3) are that –
(a) the
disclosure was made in such a form or manner that P could not be identified
from the information disclosed;
(b) the
disclosure was made with P’s consent;
(c) the
information disclosed had previously been lawfully disclosed to the public;
(d) the
disclosure was made in accordance with any enactment or order of a court;
(e) the
disclosure was necessary or expedient for the purpose of protecting P’s
best interests; or
(f) it
was necessary or expedient for the disclosure to be made to a person or body
for the purpose of enabling that person or body to exercise functions under any
enactment.
(5) If a person relies on a
defence under paragraph (3) and evidence is adduced which is sufficient to
raise an issue as to that defence, the court must assume that the defence is
satisfied unless the prosecution proves beyond reasonable doubt that it is not.
22 Transitional
and saving provisions
(1) In this Regulation, a
reference to the “commencement day” is to the day on which the Capacity and Self-Determination (Jersey)
Law 2016 (the “Capacity Law”) comes into force, and a reference to
a delegate is to a delegate within the meaning of Part 4 of the Capacity
Law.
(2) Where, immediately
before the commencement day, a curator appointed under Article 43 of the Mental
Health (Jersey) Law 1969 is managing and administering the property and affairs
of a person in accordance with that Article, Part 4 of the Capacity Law shall
apply, on and after the commencement day, subject to and with the further
modifications set out in paragraphs (3) and (4), and –
(a) in
relation to the curator, as though the curator were a delegate appointed under
that Part, having given the consent required by Article 34(2) of the Capacity
Law, and having all powers; and
(b) in
relation to the person whose property and affairs are managed and administered
by the curator, as though that person were “P” within the meaning
of that Part.
(3) Notwithstanding the
repeal of the Mental Health (Jersey) Law 1969 by the Mental Health (Jersey) Law 2016 –
(a) the
provisions of Article 43(8), (9) (except for sub-paragraph (a)) and (10)
of the Mental Health (Jersey) Law 1969 shall continue to apply, on or
after the commencement date, so that a person to whom paragraph (2)(a)
would otherwise apply may cease to hold office (whether as curator or as
delegate) under any of those provisions;
(b) where
a curator declines to act as a delegate, he or she may resign his or her office
and Article 43(11) of the Mental Health (Jersey) Law 1969 shall
continue to have effect for the purpose of enabling such resignation, but as
though for the power of the Court under that provision to appoint some other
person as curator there were substituted the power of the Court to appoint a
delegate under Article 24 of the Capacity Law; and
(c) Article 43(20),
(21) and (24) of the Mental Health (Jersey) Law 1969 shall continue to
have effect as though the requirements for submitting inventories and accounts
under those provisions were requirements made by the Court under Article 34(8)(b)
of the Capacity Law for reports to be provided to the Judicial Greffier, except
that Article 43(20)(b) of the Mental Health (Jersey) Law 1969 shall
apply as though for the time limit of 30 days in that provision there were
substituted a limit of 90 days.
(4) A person becoming a
delegate by virtue of the application of paragraph (2) shall have all such
powers as are exercisable by a delegate appointed under Part 4 of the Capacity
Law, subject to any conditions or restrictions which may be imposed by the
Court of its own motion under that Part or pursuant to an application made to
the Court by that person.
23 Citation
These Regulations may be cited as the Capacity and
Self-Determination (Supervision of Delegates etc.) (Jersey) Regulations 2018.